Exclusive: Did Pennsylvania’s Legislature Violate The State Constitution? Is “No Excuse” Mail-In Voting Illegal In Pennsylvania?


In 2019 Pennsylvania’s Republican-controlled legislature voted to move the state to “no excuse” mail-in voting. A new lawsuit – Doug McLinko vs Commonwealth of Pennsylvania, Department of State and Veronica Degraffenreid – challenges the legislation passed by the Pennsylvania state legislature and alleges the change to mail-in voting was unconstitutional. The results of the suit could have major implications for future elections and potentially for ongoing efforts to challenge the 2020 election results.

The plaintiff in the case is Doug McLinko, a member of the Bradford County Board of Elections and a Bradford County Commissioner. “As a member of the Board of Elections, McLinko must oversee the lawful administration of all aspects of elections, including voter registration, the voting process, and tabulation of votes. He must also certify the results of all primary and general elections in the county to the Secretary of State.” He contends in his suit that, because the move to mail-in voting was done unconstitutionally he was placed in the untenable position of being required by the state to “act unlawfully.”

The action filed in the Commonwealth Court by McLinko is a straightforward constitutional argument. It does not address issues of election fraud, ballot stuffing, hacking of voting machines or any of the other myriad of allegations that continue to surround the November 2020 election. It says simply that the Pennsylvania Supreme Court has long held that the Pennsylvania state constitution requires in-person voting. Given that this requirement is embedded in the state’s constitution then only a change to that document could allow mail-in voting.

The constitution cannot be amended by a simple act of the legislature. Act 77 – the bill that moved Pennsylvania to mail-in voting – was unconstitutional and thereby legally null and void, the lawsuit contends.

Additionally, the lawsuit points out that the Pennsylvania state constitution even goes so far as to identify those specific instances in which absentee voting is allowed and that the Pennsylvania Supreme Court already in a previous case declared an earlier version of “no-excuse” mail-in voting unconstitutional under Pennsylvania law.

“…Voters can vote by absentee ballot (by mail) when they (a) are absent from their residence on the election day because of business, (b) unable to attend in person because of illness or disability, (c) unable to attend because of the observance of a religious holiday or (d) unable to vote because of election day duties.

PA State Constitution

“In ‘In re Contested Election in Fifth Ward of Lancaster City‘, the Supreme Court declared unconstitutional a Pennsylvania statute, P.L. 309 of 1923, that authorized a form of no-excuse mail in voting similar to Act 77.”

Language in that opinion that seems directly applicable to the current lawsuit, the Pennsylvania Supreme Court added, “[h]however laudable the purpose of the act of 1923, it cannot be sustained. If it is deemed necessary
that such legislation be placed upon our statute books, then an amendment to the Constitution must be adopted permitting this to be done. For the reasons stated the only assignment of error is overruled.”

McLinko’s lawsuit appears tight, well-reasoned and narrowly focused. The case law cited by his counsel seems directly on point. The Pennsylvania Supreme Court has, it seems, already considered this issue and spoken clearly. If you want to make changes to the election laws that would allow for “no excuse” mail-in voting, as Act 77 purported to do, then you need to change the Constitution. You cannot do that by a simple act of the legislature.

If McLinko’s lawsuit is successful, the implications will be profound. The request for relief in the documents filed with the Commonwealth Court reads as follows:

“WHEREFORE, Petitioners respectfully request that this Court enter a declaratory judgment in their favor and against Respondents:

(a) that Act 77 violates the Pennsylvania Constitution.
(b) that 25 Pa.C.S. Chapter 14, Article XIII-D violates the Pennsylvania Constitution;
(c) that Act 77 and 25 Pa.C.S. Chapter 14, Article XIII-D are void; and
(d) Any and all other appropriate relief.”

Stripped of the “legalese” the relief demanded is straightforward. The court is requested to declare Act 77 a legal nullity. Any action taken on its basis will be, by implication, a nullity as well. The state will be returned to in-person voting. The implications for the November 2020 election remain unclear.

No date has been set for a hearing on the lawsuit in question as of today. Those interested in the question of election integrity will be watching for that news with intense interest.